The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued by the Responsible Authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 17 Victoria Road, Chirnside Park which allows the restrictive covenant contained in the instrument of transfer in the register of land which is under the operation of the Transfer of Land Act 1958 to be varied by the substitution of part (a) of the restriction with the following words:

(a) no building shall be erected on each of the said lots 15, 16 and 18 other than one private dwelling house with the usual outbuildings or one church and not more than two single storey private dwelling houses with the usual outbuildings or one church shall be erected on the said Lot 17 on Plan of Subdivision LP26169.

_____________________________

For the Applicant for Review: Mr Peter Schock appeared in person.

For the Responsible Authority: Ms L Wolfers, Planning Consultant, appeared for the Yarra Ranges Shire Council.

1. This was an application under section 77 of the Planning and Environment Act 1987 to review a decision by the Yarra Ranges Shire Council to refuse a permit for variation of the restrictive covenant over land at 17 Victoria Road, Chirnside Park.

(a) no building shall be erected each of on the said Lots 15, 16, 17 and 18 other than one private dwelling house with the usual outbuildings or one church.

(b) no such building outbuilding or church shall be of any material other than brick, brick veneer, concrete or weatherboard construction.

(c) no such building outbuilding or church shall be constructed wholly or in part of second hand materials.

(d) no such dwelling house or church shall (exclusive of all verandahs and outbuildings) be of an area of less than one thousand square feet.

3. The applicant wished to vary the covenant to allow for two single storey dwellings over Lot 17, in a subsequent 2-lot subdivision of the subject land. The varied covenant would read:

1. That the restrictive covenant contained in the instrument of transfer in the register of land which is under the operation of the Transfer of Land Act 1958 be varied by the replacement of part (a) of the restriction and the insertion of the following words:

(a) no building shall be erected on each of the said lots 15, 16 and 18 other than one private dwelling house with the usual outbuildings or one church and not more than two single storey private dwelling houses with the usual outbuildings or one church shall be erected on the said Lot 17 on Plan of Subdivision LP26169.

4. At the commencement of the hearing Mrs Wolfers advised that:

(i) half the objecting beneficiaries of the covenant had withdrawn their objections to the council before the council considered the permit application;

(ii) the council's sole ground of refusal of the application for variation was based on the statutory position that they were obliged to refuse under the Planning and Environment Act, 1987 (Vic), s.60(5) if there were any objecting beneficiaries at all. Their sole ground of refusal reads:

The proposal cannot satisfy the provisions of Section 60(5) of the Planning and Environment Act 1987 in that owners who benefit from the restriction have objected to the removal or alteration of the restriction, claiming that the removal or alteration will result in detriment to them.

(iii) by the time this matter came on for hearing before me this morning, all remaining objecting beneficiaries of the covenant, bar one, a Mr Malcolm Powell, had withdrawn their objections to the covenant variation. Their withdrawal was forthcoming on the basis that the covenant was varied in the constrained manner of allowing only two single storey houses. An example of the withdrawal reads:

In relation to the matter listed for hearing before the Victorian Civil & Administrative Tribunal (VCAT Reference Number: P1526/2003) between Peter Schock (Applicant) and the Yarra Ranges Shire Council (Respondent) at 10.00am on the 15th October 2003, I hereby give notice that I wish to retract my objection to the application for the variation to the restrictive covenant on the property at 17 Victoria Road (Lot 17 LP 26169) Chirnside Park Vic 3116, as outlined in Planning Application No: YR2002/924 Shire of Yarra Ranges.

It is my understanding that the variation to the covenant is to permit the construction of a second, single story dwelling on said Lot 17. In discussion with the Applicant it is also noted that the existing dwelling will be removed and replaced by a new single story dwelling.

5. Mr Malcolm Hugh Powell, who was an original objector to the Permit Application, was served with the Review documents by Mr Schock, the Permit Applicant. Although he did not have to go to the trouble of sourcing the form to send to the Tribunal, as the Statement of Grounds proforma was also served on him, Mr Powell did not send in a Statement of Grounds to the Tribunal indicating that he wished to contest the Application to Review against the council's decision. Accordingly, Mr Schock was not expecting Mr Powell to be at today's hearing, as he indicated he did not wish to be a party to the proceedings.

6. Ms Wolfers consequently advised that she wished to call Mr Powell as her witness. As he was not an expert witness, she was not bound by the Tribunal's Practice Note No. 1 cl. 4.2 to give the other party, Mr Schock, 10 business days notice of the evidence to be given by Mr Powell. Mr Powell was permitted to give evidence for Ms Wolfers.

7. The subject site is located on the corner of busy Victoria Road with Akarana Road. The site is regular in shape and has an area of 1,263 square metres. The site is currently occupied by one detached dwelling, with three driveways, two directly onto Victoria Road and one directly onto Akarana Road. One of the driveways which exits directly onto Victoria Road exits on the splay corner of the two streets. If the land is redeveloped for dual occupancy, the applicant proposes to close the Victoria Road driveways and open a second driveway into Akarana Road.

8. The land is zoned Residential 1 under the Victoria Planning Provisions (VPP) format Yarra Ranges Planning Scheme and no other relevant overlays apply to the land.

LEGISLATIVE CONTROLS and the ISSUES FOR CONSIDERATION

9. The principal issues for consideration in respect of this application for review is whether Mr Powell falls within the category of the Planning and Environment Act, 1987 (Vic), s. 60(5).

10. The Planning and Environment Act 1987 (Vic), s.60(5) reads:

The Responsible Authority must not grant a permit, which allows for the removal of the covenant, unless it is satisfied:

(a) the owner of any land benefited by the restriction (other than an owner who, before or after the making of the application for the grant of a permit but not more than three months before its making, has consented in writing to the grant of the permit) will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the restriction; and

(b) if that owner has objected to the grant of the permit, the objection is vexatious or not made in good faith.

(i) whether any beneficiary of the covenant, including Mr Powell, will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the limited covenant variation sought, and

(ii) whether Mr Powell's objection is vexatious or not made in good faith.

12. Judge Strong and Member Cimino interpreted the stringency of the above s.60(5) in McFarlane v City of Greater Dandenong [2002] VCAT 469:

14. The fact that none of the beneficiaries has objected to the variation application does not relieve the Tribunal of its duty to give full force and effect to the requirements of subsection (5)(a). The scope of this paragraph was considered by this Tribunal in C Carabott & Ors v Hume City Council and T Scuderi [Application No. 1997/77561 22AATR 261 (and a related application dealt with at the same time.] The decision was given on 9 August 1998, the Tribunal being constituted by his Honour Judge Wood, Deputy President Macnamara, Senior Member Byard and Member Moles.

15. After a careful consideration of paragraph (a) the Tribunal distilled the following propositions (we paraphrase and extrapolate as appropriate):

1. It is for the Tribunal to determine whether it is satisfied on the balance of probabilities that any covenant beneficiary "will be unlikely to suffer any detriment of any kind if the variation is permitted." In other words it is not a question of whether the Tribunal is satisfied there will be detriment: the Tribunal must be affirmatively satisfied that there will be none.

2. Compliance with planning controls does not, of itself, and without more, establish that a covenant beneficiary will be unlikely to suffer any detriment of any kind. Consideration of a proposal from a planning perspective often requires a balancing of competing interests. There is no such balancing exercise involved in the consideration of the issue which arises under paragraph (a). The nature of the enquiry is fundamentally different.

3. The mere assertion of the existence of a detriment is not sufficient to demonstrate its existence. On the other hand, loss of amenity will constitute a detriment, and in this regard amenity includes "an appeal to aesthetic judgment, which is difficult to measure, however the notion of ´perceived detriment' specifically contemplates that this consideration is relevant to the enquiry".

4. The determination must be made on the evidence before the Tribunal "including the appeal site and its environs".

5. It is not necessary for an affected person to assert detriment. This is so for two reasons: first, because the Tribunal must be affirmatively satisfied of a negative, namely that there will probably be no detriment of any kind; secondly, the Tribunal is entitled to form its own views from the evidence...........

21. The stringency of paragraph (a) is perhaps not universally appreciated. It sets the bar extraordinarily high. The existence of any detriment of any kind (including any perceived detriment) is sufficient to defeat an application to vary a covenant. "Perceived detriment" is a curious expression. We are by no means sure what it means. In Carabott the Tribunal opined that it contemplates that "an appeal to aesthetic judgment" is relevant to the enquiry. We agree that "perceived detriment" would include any loss of amenity in the form of diminution of aesthetic quality. Aesthetics is, of course, a subjective concept: perhaps this is what is meant by "perceived detriment". We do not however, think it necessary to further examine the concept for the purpose of these reasons.

22. It might be thought in some quarters that "any detriment of any kind" means "any appreciable detriment" or "any significant detriment". It does not. It means what it says. Moreover, as we are at pains to emphasise, it is not a matter of whether detriment can be demonstrated. What must be demonstrated is the complete lack of it. [Tribunal emphasis]

23. This construction is borne out by paragraph (b), the effect of which is that the mere presence of an objection by a relevantly interested person is fatal unless the Tribunal is satisfied that the objection is vexatious and not made in good faith. Although (b) does not apply in the circumstances of this case, it underscores the near impossible task faced by an applicant for variation or removal of a covenant who has not procured the consent of those entitled to its benefit. This is further underscored by the words of the Minister introducing the provision in 1993:

"In relation to covenants, or title restrictions, in place before 25 June 1991, Clause 15 [section 60] ensures that permits are not granted to remove or vary those covenants unless any owner of land benefiting from the covenant will not suffer detriment of any type and unless any objection by an owner is not brought in good faith. That tightens the provision in relation to covenants in place before that date when s.60 (2) of the principal Act commenced.

The effect of the clause is that permits should be granted only for "dead wood" covenants if no owner benefiting from the covenant objects to its removal or variation. The alternative avenue to remove or vary a covenant remain in place, being application to the Supreme Court under the Property Law Act 1958 and the preparation of a planning scheme amendment."

13. Mr Powell lives about 200 metres, and around the corner, from the subject land. His home at 10 Karralla Court lies off Akarana Road, which in turn exits into Victoria Road. Mr Powell has lived in this home for over thirty years.

14. His evidence was that he would not suffer any aesthetic or visual detriment, any overlooking detriment or any noise detriment from the proposed variation. Mr Powell agreed that he would neither see nor hear any development on the subject site from his property.

15. His evidence was that the only detriment he would suffer would be traffic detriment, as he put it:

The danger of travelling on Akarana and Victoria Roads.

16. He said Victoria Road had a crest, and one had to perform entering and exiting movements into Akarana Road swiftly to avoid oncoming busy traffic. He said the traffic detriment would be caused by:

(i) additional vehicles generated by one extra dwelling fronting onto Akarana Road, exiting into Victoria Road or entering Victoria Road, at the same time he wished to undertake a similar manoeuvre from his dwelling at no. 10 Karralla Court;

(ii) additional visitors' vehicles being parked in Akarana Road while he was undertaking the manoeuvre described above, allowing for less road pavement into which he could manoeuvre his car while entering Akarana Road.

17. The council asked Mr Powell to indicate on a locality plan, other sites within the parent subdivision affected by the restrictive covenant, where variations to the covenant had occurred. This he did.

(ii) nos. 5 & 6 Karralla Court and no. 113 Maroondah Highway, Chirnside Park;

19. In respect of no. 11 Karralla Court, Mr Powell gave evidence that he did not object to that application to vary a restrictive covenant to allow two dwellings (including a double storey dwelling with a double garage) on that block of land which immediately abutted his own home, as they had been developed fifteen years previously and he felt the variation was a fait accompli.

20. In respect of no. 41 Victoria Road, Mr Powell gave evidence that, although he had the opportunity, because he had been an objecting beneficiary, he did not appeal to VCAT against council's notice of decision in July 2001 to grant a permit (No. YR2001/749) to allow a covenant variation to build two dwellings directly opposite the subject land at no. 41 Victoria Road, on the opposite corner of Akarana Road to this subject site.

21. In respect of 119 Maroondah Highway some 300 metres away, he was also not an objector/appellant to a variation of covenant granted by council in a permit No. PE97/01569 on 9 February 1999. He explained that was because that dual occupancy did not use Akarana Road as an access point and thus did not affect his traffic concerns.

22. In respect of nos. 5 & 6 Karralla Court and no. 113 Maroondah Highway Chirnside Park, Mr Powell gave evidence that he agreed to a negotiated variation to covenant in Permit No. PE/99/00769 issued 28th July 1999, to now allow:

(i) a dual occupancy on each of nos. 5 & 6 provided each new lot created was not less than 1300m2, and building occurred not less than 4 metres from a common boundary;

(ii) a dual occupancy on no. 113 Maroondah Highway, even though that varied density generated lots of much less than 1300m2 each.

23. Mr Powell explained that he allowed a covenant variation to the blocks in the same street as he lived, because he was afraid that the owner, Mr Tozer, would apply to the Supreme Court for a variation allowing multi unit development over the three blocks, and because the new lot sizes would be over 1300m2 each, in the case of nos. 5 & 6 Karralla Court. That same argument cannot, however, be applied to no. 113, which he justified by saying it did not require access off Akarana, and did not really concern him. He said he could neither see or hear the development at no. 113 Maroondah Highway from his home.

s.60(5)(a) Detriment of any kind

24. In Scuderi v Hume City Council, (1998) 22 AATR 261, a specially constituted four member division of the Tribunal comprising Judge Wood, Macnamara DP, Byard SM and Moles, M, in considering the relevant statutory provisions of s.60(5)(a), went on to clarify, in respect of the word perceived in s.60(5)(a), the following test adopted by Byard, M. in Wilde v City of Moonee Valley and Others 18 AATR 144 @ 158_:_

The Responsible Authority or the Tribunal must consider whether it is satisfied that [any] owner of benefiting land is likely to suffer any detriment of any kind but not whether persons have a perception of detriment that does not truly amount to detriment.

25. Will Mr Powell be unlikely to suffer any detriment of any kind (including any perceived detriment) from the proposed variation?

26. Although he says he will suffer detriment, I do not find this to be the situation on an objective analysis. The only detriment Mr Powell adverts to is traffic danger.

27. I find that the addition of one more single storey dwelling on this site will not generate any traffic hazard at all for Mr Powell as he exits or enters Akarana Road because:

(i) the road pavement widths are adequate to cater for the few extra vehicle movements generated on a daily basis from this dwelling;

(ii) adding one extra dwelling will not alter the crest manoeuvrings;

(iii) the timing coincidence of Mr Powell entering Akarana at the same time as exiting vehicles generated from this extra particular dwelling is negligible (compared to vehicles which exit already anyway) and in any event, the pavement width of Akarana can accommodate same as they already do;

(iv) if, when Mr Powell wishes to enter Akarana, visitors' or other cars are parked on both sides of Akarana already, the addition of one extra dwelling cannot worsen that situation as the on-street car spaces next to the kerb are already being occupied.

28. Consequently, I find that Mr Powell will be unlikely to suffer any detriment of any kind including any perceived detriment from the addition of one extra single storey dwelling on Lot 17.

29. As to all other benefiting owners, the rest of whom either did not object at all or withdrew their objections before council or before this Tribunal (indicating support for this modest variation), many of whom are also close neighbours to this site, I also find that they equally will be unlikely to suffer any detriment of any kind as a consequence of this modest variation.

s.60(5)(b) not made in good faith

30. I also find that Mr Powell's objection is not made in good faith for a number of reasons.

31. Firstly, he was served with notice of the applicant's review to this Tribunal together with a proforma Statement of Grounds for him to fill in, if he wished to contest Mr Schock's application to review council's refusal. All Mr Powell had to do was to fill in the proforma Statement with his grounds and send it in to the Tribunal. He did not have to go searching for the right form to complete. It was provided to him under cover of documents served upon him by the Applicant for Review. His failure to send in that proforma statement of grounds indicates he was not genuine about his objection as he did not wish to contest Mr Schock's review. He only managed to have a voice today as lay witness for the council.

32. Secondly, his actions in relation to other covenant variations in this same subdivision are erratic. In some cases he fails to object or further an objection to the Tribunal when he has the opportunity (eg. no. 41 Victoria Road across the road from this subject land as well as no. 119 Maroondah Highway). In other cases he fails to object to a variation immediately next door to him for other reasons of fait accompli (no. 11 Karralla Court).

33. Thirdly, he agreed to a covenant variation at no. 5 and no. 6 Karralla Court, which allows two additional dwellings to access/egress Akarana Road with all the identical abovementioned traffic impacts, even though he maintains he is detrimentally affected by the same traffic impacts generated by this extra single storey dwelling. This indicates an inconsistency and application of double standards on his part.

34. In summary I have found that in the unusual and particular factual circumstances of this case, a permit can be granted to vary the restrictive covenant pursuant to cl.52.02 of the Yarra Ranges Planning Scheme, since s. 60(5) of the Planning and Environment Act, 1987 (Vic) is not offended.

35. Accordingly the Tribunal will allow the application for review and direct that a permit issue.

_____________________________